Ellis et al

Filing 89

ORDERED that third-party Ds' # 73 Motion to strike is GRANTED. The clerk of court is directed to STRIKE third-party Ps' # 72 Amended complaint. FURTHER ORDERED that third-party Ds' # 81 Motion to dismiss is DENIED as moot. Signed by Judge Larry R. Hicks on 11/8/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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MELINDA ELLIS,
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Plaintiff,
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v.
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ALESSI TRUSTEE CORPORATION; et al., )
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Defendants.
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3:09-CV-0428-LRH-RAM
ORDER

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Before the court is third-party defendants’ motion to strike third-party plaintiff’s first

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amended complaint. Doc. #73.1 Third-party plaintiffs filed an opposition (Doc. #78) to which third-

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party defendants replied (Doc. #79).

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I.

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Facts and Background
In 2003, defendant/third-party plaintiff Alessi Trustee Corporation (“ATC”) was formed as

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a separate and distinct entity from defendant/third-party plaintiff Alessi & Koenig, LLC

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(“Koenig”). ATC contacted then State of Nevada Department of Business and Industry’s Financial

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Institutions Division (“FID”) commissioner L. Scott Walshaw (“Walshaw”) to inquire whether

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ATC required a license to perform non-judicial foreclosure work in Nevada. In a February 20, 2003

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letter, Walshaw stated that under NRS § 649 et seq., he believed that ATC did not need to obtain a

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Refers to the court’s docket number.

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license. Third-party defendant Stephen Kondrup (“Kondrup”) concurred in the exempt status when

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he became a deputy commissioner and, during his tenure, repeatedly stated that there was no

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problem with ATC conducting non-judicial foreclosure proceedings because ATC was not a

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community manager which required licensing. Thereafter, ATC began performing non-judicial

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foreclosure work.

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In 2005, NRS Section 649 was amended to remove various licensing exemptions. Amended

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NRS 649.020(3)(a) provides that a community manager is anyone “engaged in the management of

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a common-interest community if the community manager, or any employee, agent or affiliate of the

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community manager, performs or offers to perform any act associated with the foreclosure of a

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lien.” In light of the 2005 amendments, Kondrup and FID investigated ATC’s collection operations.

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On September 12, 2008, Kondrup and FID issued a cease and desist order against ATC finding that

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they were a community manager subject to licensing.

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On July 15, 2009, underlying plaintiff Melinda Ellis (“Ellis”) filed a class action complaint

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against ATC and Koenig alleging that defendants, acting as a collection agency for a homeowner’s

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association, violated the Fair Debt Collection Practices Act. On August 10, 2009, defendants filed a

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third-party complaint against third-party defendants Kondrup and FID alleging that the

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September 12, 2008 cease and desist order directing ATC to cease and desist all collection

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operations was improper. Doc. #7. In response, third-party defendants filed a motion to dismiss the

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third-party complaint (Doc. #34) which was granted by the court (Doc. #53).

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More than a year later, on June 23, 2011, third-party plaintiffs filed an amended third-party

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complaint without leave of court. Doc. #72. Thereafter, third-party defendants filed the present

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motion to strike. Doc. #73.

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II.

Discussion
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the court may strike a filing

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for “any redundant, immaterial, impertinent, or scandalous matter.” FED . R. CIV . P. 12(f). In their

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motion, third-party defendants argue that the amended third-party complaint is an impertinent filing

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because it was filed without leave of court. See Doc. #73. The court agrees.

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Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading

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after a responsive pleading has been filed only with the opposing party’s written consent or by

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leave of court. FED . R. CIV . P. 15(a)(2). Here, neither requirement was met. Further, no motion to

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amend was ever filed by third-party plaintiffs, nor was a copy of the proposed amended third-party

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complaint provided to the court for its review in accordance with LR 15-1. Accordingly, the court

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shall grant third-party defendants’ motion and strike the amended third-party complaint.

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IT IS THEREFORE ORDERED that third-party defendants’ motion to strike (Doc. #73) is

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GRANTED. The clerk of court is directed to STRIKE third-party plaintiffs’ amended complaint

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(Doc. #72).

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IT IS FURTHER ORDERED that third-party defendants’ motion to dismiss (Doc. #81) is
DENIED as moot.

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IT IS SO ORDERED.

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DATED this 8th day of November, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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